Bon Appetit Family Restaurant Pty. Limited v. Synnerdahl & Anor. [2002] NSWCA 368

Bon Appetit Family Restaurant Pty. Limited v. Synnerdahl & Anor. [2002] NSWCA 368

The Caterer was not an occupier of the bistro, but it owed and breached a duty of care because it provided catering services in and extensively used the service corridor, failed to deal adequately with spillages and grease build-up over time, and that breach caused the plaintiff's injury. The Club's claim against it was incurred in respect of the Caterer's business and arose out of things done or left undone by the Caterer, so cl.4 entitled the Club to indemnity. The damages and 50/50 apportionment were not appealably wrong. However, the Club had won before the arbitrator, and its failure to call additional witnesses at that arbitration did not justify indemnity costs against it on the...

Jurisdiction
Australia
Judgment Date
14 November 2002
Procedural Posture
Appeal From District Court Personal Injury Negligence Proceedings and Cross Claim for Contractual Indemnity / Court of Appeal Judgment
Outcome
Caterer's appeal dismissed with costs. Club's appeal allowed only to set aside the indemnity costs order against it, and otherwise dismissed. No order as to costs of the Club's appeal.
Legal Topics
['slip and Fall' 'duty of Care' 'occupier Liability' 'employer Non Delegable Duty' 'contractual Indemnity' 'indemnity Costs' 'civil Arbitration Rehearing' 'damages Assessment']
['tort' 'negligence' 'procedure' 'costs' 'contract'] ['slip and Fall' 'duty of Care' 'occupier Liability' 'employer Non Delegable Duty' 'contractual Indemnity' 'indemnity Costs' 'civil Arbitration Rehearing' 'damages Assessment']

Case Brief

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Procedural Posture

Appeal From District Court Personal Injury Negligence Proceedings and Cross Claim for Contractual Indemnity / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether the Caterer owed and breached a duty of care to the plaintiff in relation to the tiled bistro/service corridor floor where she slipped.' 'Whether the Caterer was an occupier of the bistro area or otherwise liable for failing to deal adequately with spillages and grease build-up or to provide non-slip mats.' "Whether the Club was entitled under cl.4 of the licence agreement to a complete indemnity from the Caterer for the plaintiff's claim." 'Whether the damages awarded by the primary judge should be disturbed on appeal.' 'Whether the primary judge erred in ordering indemnity costs against the Club because witnesses called at the District Court rehearing had not been called at the arbitration.']

Ratio Decidendi

The Caterer was not an occupier of the bistro, but it owed and breached a duty of care because it provided catering services in and extensively used the service corridor, failed to deal adequately with spillages and grease build-up over time, and that breach caused the plaintiff's injury. The Club's claim against it was incurred in respect of the Caterer's business and arose out of things done or left undone by the Caterer, so cl.4 entitled the Club to indemnity. The damages and 50/50 apportionment were not appealably wrong. However, the Club had won before the arbitrator, and its failure to call additional witnesses at that arbitration did not justify indemnity costs against it on the...

Court Disposition

Caterer's appeal dismissed with costs. Club's appeal allowed only to set aside the indemnity costs order against it, and otherwise dismissed. No order as to costs of the Club's appeal.

Orders

  • ["Caterer's appeal dismissed with costs." "Club's appeal allowed to the extent that the primary judge's order for indemnity costs against the Club in favour of the plaintiff is set aside, and otherwise dismissed." "No order as to the costs of the Club's appeal, to the intent that each party to that appeal should...